Opinion
NO. 2011-CA-002120-ME NO. 2012-CA-000536-ME NO. 2012-CA-000537-ME
03-22-2013
AMANDA MILAM APPELLANT v. JOHNNY MAXWELL; DOROTHY MAXWELL; CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY APPELLEES AND SAMUEL LUCK APPELLANT/CROSS-APPELLEE v. JOHNNY MAXWELL AND DOROTHY MAXWELL APPELLEES/CROSS-APPELLANTS
BRIEF FOR APPELLANT, AMANDA MILAM: Donna M. Dant Calhoun, Kentucky BRIEFS FOR APPELLANT/ CROSS-APPELLEE, SAMUEL LUCK: Clay Wilkey Owensboro, Kentucky BRIEFS FOR APPELLEES/CROSS- APPELLANTS, JOHNNY MAXWELL AND DOROTHY MAXWELL: Steve Lamb Central City, Kentucky W. E. Quisenberry, Jr. McLean County Attorney Calhoun, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM MCLEAN CIRCUIT COURT
HONORABLE BRIAN WIGGINS, JUDGE
ACTION NOS. 02-CI-00002 AND 04-CI-00112
APPEAL AND CROSS-APPEAL FROM MCLEAN CIRCUIT COURT
HONORABLE BRIAN WIGGINS, JUDGE
ACTION NO. 04-CI-00112
OPINION
AFFIRMING IN PART
REVERSING IN PART, AND REMANDING
BEFORE: CLAYTON, MOORE, AND NICKELL, JUDGES. CLAYTON, JUDGE: These are two appeals and a cross-appeal from two decisions of the McLean Circuit Court. Both decisions deal with the custody and child support of a thirteen-year-old child, L.L. Based upon the following, we will affirm in part and reverse and remand in part.
BACKGROUND INFORMATION
L.L. is the minor child of Amanda Milam and Samuel Luck. The facts upon which these appeals are based are set forth chronologically, as follows:
On January 31, 2005, Dorothy and Johnny Maxwell (the Maxwells) were granted custody of all three of Luck's children. The Maxwells are Luck's grandparents.
On October 1, 2007, Luck was ordered to pay $695.27 in child support to the Maxwells.
On June 5, 2008, Luck and the Maxwells entered into an agreed order in which Luck agreed to terminate visitation with his children and the Maxwells agreed to relieve him of child support payments.
On October 4, 2011, Milam moved the McLean Circuit Court for permanent custody of L.L.
On October 17, 2011, the court denied Milam's motion for custody.
On November 29, 2011, Luck filed a motion to modify custody of L.L. in his favor.
On November 30, 2011, the McLean County Attorney filed a motion seeking an order requiring Luck to pay past and present child support.
On December 12, 2011, the circuit court denied Luck's request for a hearing and reinstated his child support obligation of $695.27 per month, retroactive to April 1, 2011.
Luck and Milam now bring appeals on the issues of custody and child support.
STANDARD OF REVIEW
Kentucky Rules of Civil Procedure (CR) 52.01 provides that "[f]indings of fact shall not be set aside unless clearly erroneous, and due regard shall be given the opportunity of the trial court to judge the credibility of witnesses." A judgment is not "clearly erroneous" if it is "supported by substantial evidence." Owens-Corning Fiberglas Corp. v. Golightly, 976 S.W.2d 409, 414 (Ky. 1998). Substantial evidence is "evidence of substance and relevant consequence having the fitness to induce conviction in the minds of reasonable men." Id.; Kentucky State Racing Comm'n v. Fuller, 481 S.W.2d 298, 308 (Ky. 1972).
In determining whether the court erred in granting or denying custody, the appellate court must determine whether the findings of the court were clearly erroneous or whether there was an abuse of discretion. Eviston v. Eviston, 507 S.W.2d 153 (Ky. 1974). With these standards in mind, we review the trial court's decisions.
DISCUSSION
I. Custody Issues.
We will first deal with the two motions for custody brought by Luck and Milam individually.
A. Milam.
In denying Milam's motion for modification of custody of L.L., the circuit court made its decision after taking into account the wishes of the Maxwells; the wishes of L.L.; the extent to which L.L. had been cared for, nurtured and supported by the Maxwells since 2005; L.L.'s adjustment to his home, school and community; and the mental and physical health of all parties involved.
Kentucky Revised Statutes (KRS) 403.340(3) provides, in relevant part, as follows:
[T]he court shall not modify a prior custody decree unless after hearing it finds, upon the basis of facts that have arisen since the prior decree . . . that a change has occurred in the circumstances of the child or his custodian, and that modification is necessary to serve the best interests of the child.
In determining that it was in the best interests of L.L. to remain under the care of the Maxwells, the trial court noted that the Maxwells were adamantly opposed to Milam having custody of L.L. since she had allowed L.L. to communicate with Luck regardless of the Maxwells' wishes that he not. The court also found fault with Milam's actions in this regard due to the history of physical violence Luck had with both Milam and his subsequent spouse. The court noted that since Luck and L.L. had reestablished contact, L.L. had become increasingly rebellious with the Maxwells.
As to L.L.'s wishes, the court found that L.L.'s desire to live with his father would be detrimental to his best interests. L.L.'s second choice for custody was his mother. L.L. stated that he had more freedom with his parents than he did with the Maxwells and that they were not as demanding as the Maxwells. The trial court found that L.L.'s wishes regarding his custody were not in his best interests.
Finally, the trial court found that the Maxwells had cared for, nurtured and provided for L.L. by seeing to his daily needs, providing him with a safe and stable home with his siblings and being the only real parental figures L.L. had ever had. While there were allegations of abuse by L.L., the allegations were unsubstantiated. The court noted that the Maxwells had tried various methods of disciplining L.L. and that they consistently acted in what they believed to be the best interests of L.L.
The trial court noted that Milam had changed her position for the better since the original granting of custody to the Maxwells. Given the evidence of the stability with the Maxwells, however, the trial court found it was in L.L.'s best interests for them to retain custody.
We agree with the findings and conclusions of the court. It was not erroneous for the trial court to look to the health and well-being of L.L. in deciding where he should be placed. Also, the trial court looked at factors such as health (both mental and physical), stability, financial support and his daily needs in determining that L.L.'s interests would best be served in continuing to be in the custody of the Maxwells. We find nothing in the record which contradicts this finding and it is certainly not clearly erroneous. Thus, we will affirm the decision of the McLean Circuit Court in denying Milam's motion for a change in custody of L.L.
B. Luck
Luck also moved for a modification of the order of custody of L.L. The trial court denied his motion based upon the following:
[U]pon review of the affidavit . . ., the Court is of the opinion that Luck's motion should be denied because Luck's affidavit fails to establish adequate cause for hearing on the matter as required by KRS 403.350. Specifically, the record reflects that this Court held an extensive hearing on October 4, 2011, addressing the motion for modification of custody filed by [Milam]. Luck received a copy of Milam's motion, as well as notice of the hearing date. He was thus on notice and properly before the Court. Although he did not appear at the hearing, his attorney of record appeared on his behalf, remained in the courtroom throughout the entire hearing, and voiced no objection to Milam's motion. As the record reflects, the Court gave all parties a meaningful opportunity to be heard.
Once the proceedings were concluded, the Court considered all relevant factors, including those set out in KRS 403.340(3) and KRS 403.270(2) in determining the best interests of the child. The Court subsequently entered a final and appealable order denying Milam's motion. The order unequivocally stated: "The rights of
the parties are hereby adjudicated in accordance with the foregoing."
Clearly, the aforementioned order is a "custody decree" which can only be modified under very limited circumstances. London v. Collins, 242 S.W.3d (Ky. App. 2007); KRS 403.340. In his affidavit, Luck alleges no change of circumstances since the entry of that decree justifying modification. In short, the issues raised in Luck's affidavit have already been adjudicated. This Court's holding on the matter is consistent with "the obvious intent of the time and pleading requirements of KRS 403.340 and 403.350, [which] is to prevent continuing litigation of custody after the issues have been fairly concluded between the parties." Quisenberry v. Quisenberry, 785 S.W.2d 485, 488 (Ky. 1990).
Thus, the trial court adopted the findings and conclusions it had made in the custody motion brought by Milam. We find this is not in error and will affirm.
The facts of the case are that Luck voluntarily gave up custody of L.L. and his other two children so that he would not be required to pay child support. In circumvention of this agreement he had with the Maxwells, however, he established contact with L.L. and did so in a manner that undermined the Maxwells' control over L.L. We agree with the trial court that this was not in L.L.'s best interests nor would a change in his custody be. Thus, we will affirm the McLean Circuit Court's decision to deny Luck's motion for custody modification.
II. Child Support.
Next, we must address the issue of child support. As set forth above, Luck was ordered to pay $695.27 per month in child support to the Maxwells for the support of his three children. At the time this order was entered, Luck was current with his child support. Luck now contends that the trial court abused its discretion when it retroactively set Luck's child support obligation to April 1, 2011.
In setting the retroactive child support obligation, the court found that, "in light of the findings set forth in the Opinion and Order entered October 17, 2011, this Court shall now reinstate Luck's child support obligation of $695.27 per month, retroactive to April 1, 2011." In so doing, Luck contends the trial court did not follow Kentucky statutory or case law.
KRS 403.213(1) provides that "[t]he provisions of any decree respecting child support may be modified only as to installments accruing subsequent to the filing of the motion for modification and only upon a showing of a material change in circumstances that is substantial and continuing." Luck contends that the only motion filed in his action was the one filed by the McLean County Attorney and that, therefore, the trial court was without authority to retroactively set support before November 30, 2011. He argues that only payments accruing after the date of the motion would be lawful.
The Maxwells, however, contend that the trial court did not retroactively modify Luck's child support, but that it set aside an agreement between the parties waiving child support. The Maxwells argue that the trial court has the power to recognize de facto modification of child support obligations, enforce the agreement of the parties, and modify arrearages according to precedent set forth in Price v. Price, 912 S.W.2d 44 (Ky. 1995), and Whicker v. Whicker, 711 S.W.2d 857 (Ky. App. 1986).
The Maxwells then contend that, pursuant to contract law,
[i]f a contract is grounded on the promisee's forbearance of the enforcement of a legal right, it is not necessary for the promisee to prove deterioration in his or her original position, but the promisee may elect either to enforce the original right or sue directly on the contract.17A Am. Jur. 2d Contracts § 708 (May 2012).
It is important to note, however, that the Maxwells brought an action for contempt based upon rescission of the contract they had with Luck. This motion for contempt was remanded by the trial court at the request of counsel for the Maxwells. For this reason, we may not review the contract. Rather, we must look to the trial court's decision to modify Luck's child support obligation.
In bringing the motion on November 30, 2011, the McLean County Attorney brought it as a motion to enforce past and present child support. The court held as follows:
The Maxwells have also moved this Court for entry of an order reinstating Luck's prior child support obligation of $695.27 per month, retroactive to June of 2008. To the extent that the Maxwells seek reinstatement retroactive to 2008, the request is denied. However, in light of the findings set forth in the Opinion and Order entered October 17, 2001, this Court shall now reinstate Luck's child support obligation of $695.27 per month, retroactive to April 1, 2011.
This was an abuse of discretion. As set forth above, KRS 403.213(1) provides that a court may only modify payments beginning with the date of the motion for modification. In this case, that motion was filed on November 30, 2011. The trial court, however, used the date of April 1, 2011, because there was evidence that Luck was in contact with L.L. at that time in violation of his contract with the Maxwells. Thus, we will reverse the decision of the trial court making the payments retroactive beginning April 1, 2011, and remand this action to the trial court for an order reinstating Luck's obligation to pay child support beginning November 30, 2011.
ALL CONCUR. BRIEF FOR APPELLANT,
AMANDA MILAM:
Donna M. Dant
Calhoun, Kentucky
BRIEFS FOR APPELLANT/
CROSS-APPELLEE, SAMUEL
LUCK:
Clay Wilkey
Owensboro, Kentucky
BRIEFS FOR APPELLEES/CROSS-
APPELLANTS, JOHNNY
MAXWELL AND DOROTHY
MAXWELL:
Steve Lamb
Central City, Kentucky
W. E. Quisenberry, Jr.
McLean County Attorney
Calhoun, Kentucky